R (A) v Director of Establishments of the Security Service

JurisdictionEngland & Wales
JudgeLORD HOPE,LORD BROWN
Judgment Date09 December 2009
Neutral Citation[2009] UKSC 12
Date09 December 2009
CourtSupreme Court

[2009] UKSC 12

THE SUPREME COURT

Michaelmas Term

On appeal from: [2009] EWCA Civ 24

before

Lord Phillips, President

Lord Hope, Deputy President

Lord Brown

Lord Mance

Lord Clarke

R (on the application of A)
(Appellant)
and
B
(Respondent)

Appellant

Gavin Millar QC

Guy Vassall-Adams

(Instructed by Bindmans LLP)

Respondent

Jonathan Crow QC

Jason Coppel

(Instructed by Treasury Solicitors)

Intervener (Justice)

Lord Pannick QC

Tom Hickman

(Instructed by Freshfields Bruckhaus Deringer LLP

LORD BROWN, (with whom all members of the Court agree)

1

A is a former senior member of the Security Service, B its Director of Establishments. A wants to publish a book about his work in the Security Service. For this he needs B's consent: unsurprisingly, A is bound by strict contractual obligations as well as duties of confidentiality and statutory obligations under the Official Secrets Act 1989. On 14 August 2007, after lengthy top secret correspondence (and following final consideration by the Director General), B refused to authorise publication of parts of the manuscript. The correspondence (and annexures) described in detail the Security Services's national security objections to disclosure. On 13 November 2007 A commenced judicial review proceedings to challenge B's decision. He claims that it was unreasonable, vitiated by bias and contrary to article 10 of the European Convention on Human Rights, the right to freedom of expression. Is such a challenge, however, one that A can bring in the courts or can it be brought only in the Investigatory Powers Tribunal (the IPT)? That is the issue now before the Court and it is one which depends principally upon the true construction of section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 ( RIPA):

"(2) The jurisdiction of the Tribunal shall be –

(a) to be the only appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section;"

Subsection (3) provides that proceedings fall within this section if–

"(a) they are proceedings against any of the intelligence services;"

2

Collins J decided that the Administrative Court had jurisdiction to hear A's challenge: [2008] 4 All ER 511 (4 July 2008). The Court of Appeal (Laws and Dyson LJJ, Rix LJ dissenting) reversed that decision, holding that exclusive jurisdiction lies with the IPT: [2009] 3 WLR 717 (18 February 2009).

3

Before turning to the rival contentions it is convenient to set out the legislative provisions most central to the arguments advanced. The Human Rights Act 1998 ( HRA) by section 7 provides:

"(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may–

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

(2) In subsection (1) (a) 'appropriate court or tribunal' means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.

(9) In this section 'rules' means –

(a) in relation to proceedings before a court or tribunal outside Scotland, rules made by … the Lord Chancellor or the Secretary of State for the purposes of this section or rules of court."

Pursuant to section 7( 9), CPR 7.11 (introduced, like HRA, with effect from 2 October 2000) provides:

"(1) A claim under section 7(1)(a) of the Human Rights Act 1998 in respect of a judicial act may be brought only in the High Court.

(2) Any other claim under section 7(1)(a) of that Act may be brought in any court."

4

The only tribunals upon whom section 7(1)(a) HRA jurisdiction has been conferred by rules made under section 7(9) are the Special Immigration Appeals Commission (SIAC) and the Proscribed Organisations Appeal Commission (POAC) – not, contrary to the Court of Appeal's understanding (see paras 20, 33 and 56 of the judgments below), the Employment Tribunal.

5

I have already set out section 65(2)(a) of RIPA. Section 65(1) made provision for the establishment of the IPT and schedule 3 to the Act provides for its membership. Currently its President is Mummery LJ and its Vice-President, Burton J. Section 67(2) provides:

"Where the tribunal hear any proceedings by virtue of section 65(2)(a), they shall apply the same principles for making their determination in those proceedings as would be applied by a court on an application for judicial review."

Section 67(7) empowers the Tribunal "to make any such award of compensation or other order as they think fit". Section 67(8) provides:

"Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court."

Section 68(1) provides:

"Subject to any rules made under section 69, the Tribunal shall be entitled to determine their own procedure in relation to any proceedings, complaint or reference brought before or made to them."

Section 68(4) provides:

"Where the Tribunal determine any proceedings, complaint or reference brought before or made to them, they shall give notice to the complainant which (subject to any rules made by virtue of section 69(2)(i)) shall be confined, as the case may be, to either -

(a) a statement that they have made a determination in his favour; or

(b) a statement that no determination has been made in his favour."

6

Section 69 confers on the Secretary of State the rule-making power pursuant to which were made the Investigatory Powers Tribunal Rules 2000 (SI No 2000/2665) (the Rules). Section 69(6) provides:

"In making rules under this section the Secretary of State shall have regard, in particular, to -

(a) the need to secure that matters which are the subject of proceedings, complaints or references brought before or made to the Tribunal are properly heard and considered; and

(b) the need to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services."

7

Rule 13(2) provides that where the Tribunal make a determination in favour of the complainant they shall provide him with a summary of that determination including any findings of fact (to this extent qualifying section 68(4)(a) of the Act). Rule 6(1) gives effect to section 69(6)(b) by providing that the Tribunal shall carry out their functions in such a way as to meet the stipulated need with regard to the non-disclosure of information. The effect of rules 6(2) and (3) is that, save with the consent of those concerned, the Tribunal may not disclose to the complainant or any other person any information or document disclosed or provided to them in the course of any hearing or the identity of any witness at that hearing. Rule 9 provides that the Tribunal are under no duty to hold oral hearings and may hold separate oral hearings for the complainant and the public authority against which the proceedings are brought. Rule 9(6) provides that:

"The Tribunal's proceedings, including any oral hearings, shall be conducted in private."

8

In Applications Nos. IPT/01/62 and IPT/01/77 (23 January 2003) the IPT ruled on various preliminary issues of law regarding the legality of a number of the rules. They held that rule 9(6) was ultra vires section 69 of RIPA as being incompatible with article 6 of the Convention but that "in all other respects the Rules are valid and binding on the Tribunal and are compatible with articles 6, 8 and 10 of the Convention" (para 12 of the IPT's 83 page ruling which is itself the subject of a pending application before the European Court of Human Rights (ECtHR)). Consequent on their ruling on rule 9(b) the IPT published the transcript of the hearing in that case and now hear argument on points of law in open court.

9

A accepts that the legal challenge he is making to B's decision is properly to be characterised as proceedings under section 7(1)(a) of HRA within the meaning of section 65(2)(a) of RIPA (and not, as he had argued before the judge at first instance, that he should be regarded merely as relying on his article 10 rights pursuant to section 7(1)(b) HRA), and that these are proceedings against one of the Intelligence Services within the meaning of section 65(3)(a) (and not, as he had argued before the Court of Appeal, against the Crown). He nevertheless submits that he is not required by section 65(2)(a) to proceed before the IPT. His first and main argument – the argument which prevailed before Collins J and was accepted also by Rix LJ – is that he is entitled to proceed either by way of judicial review or before the IPT, entirely at his own choice. Section 65(2)(a), he submits, excludes the section 7(1)(a) jurisdiction of any other tribunal but not that of the courts. His second and alternative argument (not advanced in either court below) is that, even if section 65(2)(a) is to be construed as conferring exclusive section 7(1)(a) jurisdiction on the IPT, it does so only in respect of proceedings against the intelligence services arising out of the exercise of one of the investigatory powers regulated by RIPA. This, of course, would involve narrowing the apparent width of the expression "proceedings against any of the intelligence services" in section 65(3)(a) and, if correct, means that A here could not...

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